State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance
Source: Office of the New York State Comptroller Thomas P. DiNapoli
During the three-year audit period, the Department of Taxation and Finance had 81 contracts for personal and miscellaneous services totaling about $563 million. More than 98 percent of this amount related to contracts for either information technology or banking services.
Auditors examined whether the department was adequately justifying the need to initially contract out for such services and periodically reassessing whether such contracts could be deferred, eliminated or reduced to save state funds.
The auditors found that the department was sometimes but not always performing these activities.
The full text of the audit report is posted on the Internet at: http://osc.state.ny.us/audits/allaudits/093010/09s38.pdf
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
July 23, 2010
US Department of Labor to conduct Family Medical Leave Act study
US Department of Labor to conduct Family Medical Leave Act study
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
On July 21, 2010 Labor Secretary Hilda Solis announced that next year the U.S. Department of Labor will conduct a study of how families use Family Medical Leave Act [FMLA] leave, as well as "information on regulatory changes, among other things."
In the past, DOL studies have been a precursor to regulatory changes. While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments. Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed.
The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me).
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
On July 21, 2010 Labor Secretary Hilda Solis announced that next year the U.S. Department of Labor will conduct a study of how families use Family Medical Leave Act [FMLA] leave, as well as "information on regulatory changes, among other things."
In the past, DOL studies have been a precursor to regulatory changes. While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments. Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed.
The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me).
July 22, 2010
Disciplinary actions held in absentia
Disciplinary actions held in absentia
Clarke v NYC Board of Education, App. Div., 251 A.D.2d 403
No one gave Fernando A. Clarke, a purchasing agent employed by the New York City Board of Education, permission to be absent from his job on February 14, 1994. To make matters worse, he never returned to work and didn’t bother to appear for a scheduled disciplinary hearing.
Clarke was served with charges of AWOL pursuant to Section 75 of the Civil Service Law. Although Clarke did not appear at the scheduled disciplinary hearing, the hearing officer found him guilty of the charges filed against him. The board adopted the findings and recommendations of the disciplinary hearing officer and terminated Clarke from his position.
The Appellate Division dismissed Clarke’s appeal challenging his termination. The court pointed out that Clarke (1) was aware of the time and place of the Section 75 hearing; (2) failed to attend the hearing; or (3) offer any proof on his own behalf.
The decision notes that the only evidence in the disciplinary hearing record was that Clarke had been continuously absent from his position without approval since February 14, 1994 and that he had not provided any satisfactory explanation for this absence. This, said the Appellate Division, was sufficient to provide the substantial evidence needed to support the board’s determination.
This decision demonstrates the fact that an appointing authority may proceed with a disciplinary hearing notwithstanding the fact that the accused employee fails to appear at the proceeding. However, before making a final determination in cases where the Section 75 disciplinary hearing was conducted in absentia, the appointing authority should make certain that:
1. The employee was served with the disciplinary charges and that he or she was advised of the time and place of the hearing;
2. A diligent effort was made to contact the individual on the day of the hearing to determine if there was a reasonable explanation for his or her failure to appear as scheduled before the hearing officer started the hearing;
3. A formal hearing was conducted and that the employer was required to introduce evidence proving its charges before the hearing officer;
4. A formal record of the hearing was made and a transcript provided to the appointing authority and, if requested, to the employee.
Finally, the employee must be advised of the appointing authority’s determination and his or her right of appeal.
Clarke v NYC Board of Education, App. Div., 251 A.D.2d 403
No one gave Fernando A. Clarke, a purchasing agent employed by the New York City Board of Education, permission to be absent from his job on February 14, 1994. To make matters worse, he never returned to work and didn’t bother to appear for a scheduled disciplinary hearing.
Clarke was served with charges of AWOL pursuant to Section 75 of the Civil Service Law. Although Clarke did not appear at the scheduled disciplinary hearing, the hearing officer found him guilty of the charges filed against him. The board adopted the findings and recommendations of the disciplinary hearing officer and terminated Clarke from his position.
The Appellate Division dismissed Clarke’s appeal challenging his termination. The court pointed out that Clarke (1) was aware of the time and place of the Section 75 hearing; (2) failed to attend the hearing; or (3) offer any proof on his own behalf.
The decision notes that the only evidence in the disciplinary hearing record was that Clarke had been continuously absent from his position without approval since February 14, 1994 and that he had not provided any satisfactory explanation for this absence. This, said the Appellate Division, was sufficient to provide the substantial evidence needed to support the board’s determination.
This decision demonstrates the fact that an appointing authority may proceed with a disciplinary hearing notwithstanding the fact that the accused employee fails to appear at the proceeding. However, before making a final determination in cases where the Section 75 disciplinary hearing was conducted in absentia, the appointing authority should make certain that:
1. The employee was served with the disciplinary charges and that he or she was advised of the time and place of the hearing;
2. A diligent effort was made to contact the individual on the day of the hearing to determine if there was a reasonable explanation for his or her failure to appear as scheduled before the hearing officer started the hearing;
3. A formal hearing was conducted and that the employer was required to introduce evidence proving its charges before the hearing officer;
4. A formal record of the hearing was made and a transcript provided to the appointing authority and, if requested, to the employee.
Finally, the employee must be advised of the appointing authority’s determination and his or her right of appeal.
Participating in an arbitration
Participating in an arbitration
Elmira Heights CSD v Ed. Support Staff Asso., App Div 250 A.D.2d 983, Motion for leave to appeal denied, 92 N.Y.2d 807
What should a party to an arbitration do if it believes that the controversy to be submitted to the arbitrator is not arbitrable? As the Elmira Heights decision points out, such an objection must be raised by applying for a stay of arbitration or it is waived.
The issue arose after the Elmira Heights Central School District, which was paying the entire cost of its health insurance plan for employees and retirees, negotiated a provision in the Taylor Agreement between the parties, Section 16.1, requiring employees to pay a “percentage of the annual premium for their health insurance coverage.” In contrast, health insurance for employees who retired was covered in another section of the same agreement, Section 16.14. Section 16.14 made no provision for health insurance contributions to be paid by individuals upon their retirement.
In January 1995 the school board adopted a resolution requiring all employees to pay 10 percent of the cost of their health insurance. The superintendent advised all retirees that they, too, would be required to pay 10 percent of the cost of their health insurance. The retirees filed a contract grievance complaining that the imposition of such a payment violated the terms and conditions of Section 16.14.
Ultimately the matter was submitted for arbitration. The arbitrator first found that the grievance was arbitrable. In the arbitration that followed, the arbitrator concluded that the district had violated the agreement when it unilaterally imposed a “co-pay for the health care plan for its retirees.” The district was directed to refund any contributions for premiums made by retirees.
Next the district filed an Article 75 action to vacate the award. Supreme Court granted the district’s petition, finding that the arbitrator “exceeded his authority,” and that the award was contrary to law. The Association appealed the decision. At the Appellate Division the district argued that the retirees were neither members of the negotiating unit nor employees as defined in the collective bargaining agreement and thus the arbitrator exceed his authority in ordering it to refund the retirees’ contributions.
The Appellate Division said that what the district was really arguing was that “the arbitrator did not have the power to decide the question at issue and, therefore, there was nothing to arbitrate.” The court ruled that such an argument cannot be raised in a motion to vacate the arbitration award; it must be raised in a motion to stay the arbitration in the first instance.
As to whether or not the arbitrator exceeded his authority, the decision notes that an arbitrator exceeds his or her power “only if he or she gave a completely irrational construction to the provision in dispute and, in effect, made a new contract for the parties.”
Here, said the court, the agreement provides for employee contributions for health insurance but is silent with respect to such contributions by retirees. The arbitrator considered the parties’ past practice and concluded that the district “inappropriately required its retirees to contribute to the cost of their health care ... a determination ... [the arbitrator] was well within his right to make.”
Pointing out that the fact that a different construction might have been given to Section 16.14 does not mean that the arbitrator rendered a completely irrational interpretation and thereby crafted a new contract for the parties, the Appellate Division denied the district’s application to vacate the award.
Elmira Heights CSD v Ed. Support Staff Asso., App Div 250 A.D.2d 983, Motion for leave to appeal denied, 92 N.Y.2d 807
What should a party to an arbitration do if it believes that the controversy to be submitted to the arbitrator is not arbitrable? As the Elmira Heights decision points out, such an objection must be raised by applying for a stay of arbitration or it is waived.
The issue arose after the Elmira Heights Central School District, which was paying the entire cost of its health insurance plan for employees and retirees, negotiated a provision in the Taylor Agreement between the parties, Section 16.1, requiring employees to pay a “percentage of the annual premium for their health insurance coverage.” In contrast, health insurance for employees who retired was covered in another section of the same agreement, Section 16.14. Section 16.14 made no provision for health insurance contributions to be paid by individuals upon their retirement.
In January 1995 the school board adopted a resolution requiring all employees to pay 10 percent of the cost of their health insurance. The superintendent advised all retirees that they, too, would be required to pay 10 percent of the cost of their health insurance. The retirees filed a contract grievance complaining that the imposition of such a payment violated the terms and conditions of Section 16.14.
Ultimately the matter was submitted for arbitration. The arbitrator first found that the grievance was arbitrable. In the arbitration that followed, the arbitrator concluded that the district had violated the agreement when it unilaterally imposed a “co-pay for the health care plan for its retirees.” The district was directed to refund any contributions for premiums made by retirees.
Next the district filed an Article 75 action to vacate the award. Supreme Court granted the district’s petition, finding that the arbitrator “exceeded his authority,” and that the award was contrary to law. The Association appealed the decision. At the Appellate Division the district argued that the retirees were neither members of the negotiating unit nor employees as defined in the collective bargaining agreement and thus the arbitrator exceed his authority in ordering it to refund the retirees’ contributions.
The Appellate Division said that what the district was really arguing was that “the arbitrator did not have the power to decide the question at issue and, therefore, there was nothing to arbitrate.” The court ruled that such an argument cannot be raised in a motion to vacate the arbitration award; it must be raised in a motion to stay the arbitration in the first instance.
As to whether or not the arbitrator exceeded his authority, the decision notes that an arbitrator exceeds his or her power “only if he or she gave a completely irrational construction to the provision in dispute and, in effect, made a new contract for the parties.”
Here, said the court, the agreement provides for employee contributions for health insurance but is silent with respect to such contributions by retirees. The arbitrator considered the parties’ past practice and concluded that the district “inappropriately required its retirees to contribute to the cost of their health care ... a determination ... [the arbitrator] was well within his right to make.”
Pointing out that the fact that a different construction might have been given to Section 16.14 does not mean that the arbitrator rendered a completely irrational interpretation and thereby crafted a new contract for the parties, the Appellate Division denied the district’s application to vacate the award.
Use of polygraph tests in an administrative disciplinary hearing
Use of polygraph tests in an administrative disciplinary hearing
Ost v Town of Woodstock, Appellate Division, 251 A.D.2d 724, Motion for leave to appeal denied, 92 N.Y.2d 817
One of the issues raised in the Ost case was the admission of testimony concerning a polygraph [lie-detector] test during a Section 75 disciplinary hearing.
Shawn Ost, a Town of Woodstock police officer, was terminated from his position for allegedly using his police vehicle to “give a young civilian woman a ride to her home outside the geographical boundaries of the Town, without authorization and subjected her to unwanted sexual contact” [the August 1994 incident] and other charges and specifications concerning other alleged misconduct involving the same woman about a year later.
Ost argued that the disciplinary hearing “was tainted by the admission of testimony regarding a polygraph test” of the [young woman] involved in the incident. The Appellate Division said that such testimony may be considered in a Section 75 disciplinary hearing “if it is otherwise material and relevant, so long as there is ... as there was in this instance ... substantial evidence of the reliability of the machine and the qualifications of the operator.”
As to Ost’s complaint that “he was not offered an opportunity to take a similar test,” the court commented that although Ost indicated that he would be willing to submit to such an examination, he never asked for a test to be scheduled or take any steps to arrange for one on his own.
Another issue that was considered by the Appellate Division was the Town’s decision to dismiss Ost in the face of the hearing officer’s recommendation that he be reprimanded and suspended for 30 days without pay. It noted that initially the Supreme Court had rejected all of Ost’s arguments but one -- that the town had failed to set forth the rationale underlying its departure from the hearing officer’s findings and recommended penalty.
Subsequently the town explained its reasons for its decision -- it found that Ost had lied about his activities in August 1995, and “his testimony regarding the earlier incident was incredible as well.” The Appellate Division affirmed the town’s decision as to guilt and the penalty it imposed on Ost. It said that “reversal of the penalty would not be warranted for the Board explicitly found ... that [Ost’s] actions in August 1995, alone, necessitated his termination from the police force.”
Ost v Town of Woodstock, Appellate Division, 251 A.D.2d 724, Motion for leave to appeal denied, 92 N.Y.2d 817
One of the issues raised in the Ost case was the admission of testimony concerning a polygraph [lie-detector] test during a Section 75 disciplinary hearing.
Shawn Ost, a Town of Woodstock police officer, was terminated from his position for allegedly using his police vehicle to “give a young civilian woman a ride to her home outside the geographical boundaries of the Town, without authorization and subjected her to unwanted sexual contact” [the August 1994 incident] and other charges and specifications concerning other alleged misconduct involving the same woman about a year later.
Ost argued that the disciplinary hearing “was tainted by the admission of testimony regarding a polygraph test” of the [young woman] involved in the incident. The Appellate Division said that such testimony may be considered in a Section 75 disciplinary hearing “if it is otherwise material and relevant, so long as there is ... as there was in this instance ... substantial evidence of the reliability of the machine and the qualifications of the operator.”
As to Ost’s complaint that “he was not offered an opportunity to take a similar test,” the court commented that although Ost indicated that he would be willing to submit to such an examination, he never asked for a test to be scheduled or take any steps to arrange for one on his own.
Another issue that was considered by the Appellate Division was the Town’s decision to dismiss Ost in the face of the hearing officer’s recommendation that he be reprimanded and suspended for 30 days without pay. It noted that initially the Supreme Court had rejected all of Ost’s arguments but one -- that the town had failed to set forth the rationale underlying its departure from the hearing officer’s findings and recommended penalty.
Subsequently the town explained its reasons for its decision -- it found that Ost had lied about his activities in August 1995, and “his testimony regarding the earlier incident was incredible as well.” The Appellate Division affirmed the town’s decision as to guilt and the penalty it imposed on Ost. It said that “reversal of the penalty would not be warranted for the Board explicitly found ... that [Ost’s] actions in August 1995, alone, necessitated his termination from the police force.”
July 21, 2010
Governor Paterson revokes his proclamations calling for extraordinary legislative sessions
Governor Paterson revokes his proclamations calling for extraordinary legislative sessions
Source: New York State Office of the Governor
On July 21, 2010, Governor David A. Paterson revoked his proclamations for the extraordinary sessions he issued on January 17, 2010 and June 26, 2010.
The Governor explained that “This revocation lays to rest spurious claims by both the Assembly and Senate that any prior extraordinary session convened by gubernatorial proclamation remains in progress."
Governor Paterson said that he stands "ready to convene a new extraordinary session of the Legislature pursuant to his authority under Article IV, Section 3 of the Constitution should he deem such an action necessary in the coming weeks.”
According to the Governor’s Office's statement, Article IV, Section 3 of the New York State Constitution gives the Governor broad and unambiguous legal authority "to convene the legislature, or the senate only, on extraordinary occasions."
This provision, said the Governor's Office, has been part of the New York State Constitution since it was first adopted on April 20, 1777.* “Since that time – more than 230 years and four constitutions later** – the provision remains virtually unchanged and imposes no requirement on the Governor to seek legislative permission before convening an extraordinary session.”
* Article XVIII of The Constitution of 1777, in pertinent part, provides that “[The Governor] shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them [i.e., discontinue a session of a legislative body without dissolving it] from time to time, provided such prorogations shall not exceed sixty days in the space of any one year…."
In 1812, then Governor Daniel D. Tompkins [1807-1817; 1817-1825], pursuant to the authority set out in Article XVIII of the Constitution of 1777, "prorogued the legislature" -- the only recorded instance of a New York State governor exercising such power. The full text of the Constitution of 1777 is posted on the Internet at: http://www.nhinet.org/ccs/docs/ny-1777.htm
** New York State has had five constitutions, adopted in 1777, 1821, 1846, 1894, and 1938, respectively.
The full text of the Governor’s Office's statement is posted on the Internet at: http://www.ny.gov/governor/press/072110Session.html
Source: New York State Office of the Governor
On July 21, 2010, Governor David A. Paterson revoked his proclamations for the extraordinary sessions he issued on January 17, 2010 and June 26, 2010.
The Governor explained that “This revocation lays to rest spurious claims by both the Assembly and Senate that any prior extraordinary session convened by gubernatorial proclamation remains in progress."
Governor Paterson said that he stands "ready to convene a new extraordinary session of the Legislature pursuant to his authority under Article IV, Section 3 of the Constitution should he deem such an action necessary in the coming weeks.”
According to the Governor’s Office's statement, Article IV, Section 3 of the New York State Constitution gives the Governor broad and unambiguous legal authority "to convene the legislature, or the senate only, on extraordinary occasions."
This provision, said the Governor's Office, has been part of the New York State Constitution since it was first adopted on April 20, 1777.* “Since that time – more than 230 years and four constitutions later** – the provision remains virtually unchanged and imposes no requirement on the Governor to seek legislative permission before convening an extraordinary session.”
* Article XVIII of The Constitution of 1777, in pertinent part, provides that “[The Governor] shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them [i.e., discontinue a session of a legislative body without dissolving it] from time to time, provided such prorogations shall not exceed sixty days in the space of any one year…."
In 1812, then Governor Daniel D. Tompkins [1807-1817; 1817-1825], pursuant to the authority set out in Article XVIII of the Constitution of 1777, "prorogued the legislature" -- the only recorded instance of a New York State governor exercising such power. The full text of the Constitution of 1777 is posted on the Internet at: http://www.nhinet.org/ccs/docs/ny-1777.htm
** New York State has had five constitutions, adopted in 1777, 1821, 1846, 1894, and 1938, respectively.
The full text of the Governor’s Office's statement is posted on the Internet at: http://www.ny.gov/governor/press/072110Session.html
Writ of mandamus unavailable to an individual seeking the removal of material from his or her personnel file where discretionary action involved
Writ of mandamus unavailable to an individual seeking the removal of material from his or her personnel file where discretionary action involved
Hazen v Board of Educ. of City School Dist. of City of New York, 2010 NY Slip Op 06142, Decided on July 20, 2010, Appellate Division, First Department
Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? The courts have held that characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to a Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. This appears to be the rationale underlying the ruling of the Appellate Division in Hazen.
Wendy Hazen filed a petition pursuant to CPLR Article 78 seeking a court order directing the New York City Board of Education “to expunge certain [critical] letters from [her] personnel file. Supreme Court denied Hazen’s petition and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that Hazen sought to compel the removal of the letters to which she objected from her file, which was an action in the nature of mandamus.
However, said the court, placing the letters in her personnel file and deciding whether or not to remove then when Hazen demand their being expunged, are essentially discretionary actions. Mandamus* is not an available remedy in situations involving an administrator’s discretionary action. It is an “extraordinary remedy” limited in its application to vindicate an individual's clear legal entitlement to a course of action.
Further, said the court, Hazen was not entitled to a hearing in this matter as the relevant provision in the controlling collective bargaining agreement sets out the teacher's due process rights to review and challenge entries in her personnel file. The court then found that “there is no reason to conclude that [the school district] failed to follow the procedural requirements imposed by that contract or otherwise acted unlawfully.
In addition, the Appellate Division noted that the actions objected to by Hazen “were not disciplinary or penalty measures related to the filing or disposition of formal charges” and thus she was not entitled to a hearing pursuant to Education Law §3020-a.
* Latin for "We command." The writ of mandamus is an order from a superior body to an inferior body ordering the inferior body [or an individual] to perform, or refrain from performing, a particular act.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06142.htm
Hazen v Board of Educ. of City School Dist. of City of New York, 2010 NY Slip Op 06142, Decided on July 20, 2010, Appellate Division, First Department
Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? The courts have held that characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to a Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. This appears to be the rationale underlying the ruling of the Appellate Division in Hazen.
Wendy Hazen filed a petition pursuant to CPLR Article 78 seeking a court order directing the New York City Board of Education “to expunge certain [critical] letters from [her] personnel file. Supreme Court denied Hazen’s petition and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that Hazen sought to compel the removal of the letters to which she objected from her file, which was an action in the nature of mandamus.
However, said the court, placing the letters in her personnel file and deciding whether or not to remove then when Hazen demand their being expunged, are essentially discretionary actions. Mandamus* is not an available remedy in situations involving an administrator’s discretionary action. It is an “extraordinary remedy” limited in its application to vindicate an individual's clear legal entitlement to a course of action.
Further, said the court, Hazen was not entitled to a hearing in this matter as the relevant provision in the controlling collective bargaining agreement sets out the teacher's due process rights to review and challenge entries in her personnel file. The court then found that “there is no reason to conclude that [the school district] failed to follow the procedural requirements imposed by that contract or otherwise acted unlawfully.
In addition, the Appellate Division noted that the actions objected to by Hazen “were not disciplinary or penalty measures related to the filing or disposition of formal charges” and thus she was not entitled to a hearing pursuant to Education Law §3020-a.
* Latin for "We command." The writ of mandamus is an order from a superior body to an inferior body ordering the inferior body [or an individual] to perform, or refrain from performing, a particular act.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06142.htm
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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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